# Klymn v. Monroe County Supreme Court

> District Court, W.D. New York · August 11, 2023

URL: https://www.frixlaw.com/law-library/cases/10366453

## Case

- **Court:** District Court, W.D. New York
- **Decided:** August 11, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10366453

## How later opinions describe it (automated extraction)

- applying de novo review to resolve objections to recommendation denying leave to amend

## Opinion text

ATES DIST,
KOS FIED Cres
UNITED STATES DISTRICT COURT SS “py
WESTERN DISTRICT OF NEW YORK AUG 11 2023
__ __ — Ly,
wectc LOEWENGUTHS OAM 4
REBECCA KLYMN ERN DisTRIC1 ©

Plaintiff,
21-CV-6488 (JLS)
V.
MONROE COUNTY SUPREME
COURT, UNIFIED COURT SYSTEM
OF THE STATE OF NEW YORK,
OFFICE OF COURT
ADMINISTRATION, OFFICE OF THE
MANAGING INSPECTOR GENERAL
FOR BIAS MATTERS, COSMAS
GRANT, RONALD PAWELCZAK,
MARY AUFLEGER, ANN MARIE
TADDEO, CAROLYN GRIMALDI,
MARGARET ALLEN, AMY FIELDS,
AND MATTHEW ROSENBAUM
Defendants.

DECISION AND ORDER
On November 15, 2022, this Court issued a Decision and Order addressing
three motions to dismiss Plaintiffs (Dkt. 49) Amended Complaint~one filed by
Rosenbaum, one filed by the State Court Defendants,‘ and one filed by the

1 The “State Court Defendants” refers to Defendants Monroe County Supreme
Court, Unified Court System of the State of New York (““UCF”), Office of Court
Administration (“OCA”), and the Office of the Managing Inspector General for Bias
Matters (“OIG”).

Individual Defendants.2 Dkt. 58. The Amended Complaint set forth four causes of
action: (1) Discrimination on the basis of sex in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) against the State Court
Defendants; (2) Denial of Equal Protection of the Laws in violation of 42 U.S.C. §
1988 against the Individual Defendants and Rosenbaum; (3) Discrimination on the
basis of sex in violation of the New York State Human Rights Law, N.Y. Exec. L. §
290 et seq. (““NYHRL?”) against the State Court Defendants; and (4) Discrimination
on the basis of sex in violation of the NYHRL against the Individual Defendants
and Rosenbaum. See Dkt. 49 4§ 162-204.
In its Decision and Order, this Court denied Rosenbaum’s motion and,
further, granted in part and denied in part the motions filed by the State Court
Defendants and the Individual Defendants. See Dkt. 58 at 48-49. The Court then
referred the case to United States Magistrate Judge Leslie G. Foschio for all
relevant proceedings pursuant to 28 U.S.C. § 636(b)(1)(A), (B), and (C). Dkt. 59.3

2 The “Individual Defendants” refers to Defendants Grant, Pawelczak, Aufleger,
Taddeo, Grimaldi, Allen, and Fields.
3 In particular, the Court referred the case to Judge Foschio “[p]ursuant to 28
U.S.C. § 636(b)(1)(A) and (B)” for “all pre-trial matters” including, but not limited
to, “(1) conduct[ing] of a scheduling conference and entry of a scheduling order
pursuant to Fed. R. Civ. P. 16, (2) hearing and disposition of all non-dispositive
motions or applications, (3) supervision of discovery, and (4) supervision of all
procedural matters involving the aforementioned or involving the preparation of the
case or any matter therein for consideration by the District Judge.” Id. The Court
also ordered that the “Magistrate Judge shall also hear and report upon dispositive
motions for the consideration of the District Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and (C).” Id.

2.

On December 21, 2022, Plaintiff moved to amend the complaint. Dkt. 65.
Plaintiff “seeks to amend her complaint to eliminate claims dismissed by the Court,
and to replead her Section 1983 claims against the Individual Defendants, as
directed by the Court.” Dkt. 65-1 4 8. In addition, Plaintiff “seeks to plead claims
against Defendant Rosenbaum that are revived under New York’s Adult Survivors
Act, codified at CPLR § 214q).” Id. 9. Lastly, Plaintiff “proposes to add a new
cause of action under 42 U.S.C. § 1985(3) based upon the facts pleaded in support of
her Section 1988 claims.” Jd. § 10. She attached a “Proposed Second Amended
Complaint,” Dkt. 65-2, which sets forth the following causes of action:
e Discrimination on the basis of sex in violation of Title VII against the
State Court Defendants;
e Denial of equal protection of the laws and the right “to petitio[n] the
government for redress of grievances” in violation of 42 U.S.C. § 1983
against Rosenbaum, Grant, Pawelczak, Taddeo, Grimaldi, Allen,
Fields;
e Conspiracy in violation of 42 U.S.C. § 1985(3) against Rosenbaum,
Pawelczak, Taddeo, Allen, Fields;
e Discrimination on the basis of sex in violation of the NYHRL against
Rosenbaum, Grant, Pawelczak, Taddeo, Grimaldi, Allen, Fields;
e Retaliation in violation of Section 1983 and the NYHRL against
Rosenbaum;

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e Battery under Article 130 of the New York Penal Law against
Rosenbaum; and
e Intentional Infliction of Emotional Distress under Article 130 of the
New York Penal Law against Rosenbaum. See id. at 30-37.4
Defendants opposed the motion, Dkt. 69, 70, 71, 72, and Plaintiff replied.
Dkt. 73. On May 30, 2023, Judge Foschio issued a Decision and Order granting in
part and denying in part Plaintiffs (Dkt. 65) motion. Dkt. 74.
Before this Court are the parties’ objections to the (Dkt. 74) Decision and
Order. See Dkt. 82 (Plaintiff); Dkt. 78 (Rosenbaum); Dkt. 80 (State Court
Defendants); Dkt. 81 (Individual Defendants). Also pending is the Individual
Defendants’ motion for reconsideration of this Court’s (Dkt. 58) Decision and Order.
Dkt. 81. The objections and motion are fully briefed.
For the reasons discussed below, the Court OVERRULES the parties’
objections (Dkt. 78, 80, 81, 82), and further DENIES the Individual Defendants’
motion for reconsideration (Dkt. 81).
DISCUSSION
I, LEGAL STANDARDS
A. Review of the Magistrate Judge’s Order
The “standard of review for a dispositive order of a magistrate judge that has
been properly objected to is de novo.” Ki v. Kim, No. 20CV43438ARRJRC, 2022 WL

Proposed Second Amended Complaint removes Aufleger as a defendant. See
id.
-4-

4551378, at *1 (E.D.N.Y. Sept. 29, 2022) (citing Miller v. Brightstar Asia, Ltd., 43
F.4th 112, 120 (2d Cir. 2022); Fed. R. Civ. P. 72(b)(3)). However, “any part of a
dispositive order that is not objected to” is “reviewed for clear error.” Id. (internal
citation omitted). And as to “[n]ondispositive orders,” this Court also reviews for
“clear error.” Id. (citing Fed. R. Civ. P. 72(a)).
There is “some debate in this Circuit whether a motion to amend is
considered dispositive or non-dispositive for purposes of whether a Magistrate
Judge’s ruling should issue as a Report and Recommendation, subject to de novo
review, or as a Decision and Order, subject to review for clear error.” Covet & Mane,
LLC v. Invisible Bead Extensions, LLC, No. 21CV7740JPCRWL, 2023 WL 2919554,
at *1 (S.D.N.Y. Mar. 23, 2023).5 Nevertheless, the Court would reach the same
conclusion as to the parties’ objections under either a de novo or clear error
standard.

5 To this Court’s knowledge, the Second Circuit has not explicitly decided whether a
motion to amend is dispositive or non-dispositive. Some courts within the Second
Circuit have treated denial of a motion to amend as dispositive matter requiring a
recommendation from a magistrate judge, and grant of a motion to amend as a non-
dispositive matter that a magistrate judge may order. See Zink v. First Niagara
Bank, No. 18-CV-1-76-A, 2015 WL 423221, at *1 n.2 (W.D.N.Y. Feb. 2, 2015)
(“District courts in this circuit have suggested that a magistrate judge’s denial of a
motion to amend... should be treated as dispositive, while a grant of the same
motion should be treated as non-dispositive”’) (quoting Louis v. Metro. Transit
Auth., No. 12 Civ. 6333(7LG)(JO), 2014 WL 5311455, at *1 (E.D.N.Y. Oct. 16, 2014)).
See also Briggs v. Cnty. of Monroe, 215 F. Supp. 3d 213, 215 (W.D.N.Y. 2016)
(applying de novo review to resolve objections to recommendation denying leave to
amend).

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B. Motion for Reconsideration
The standard for granting a reconsideration motion is “strict, and
reconsideration will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked—matters, in other words,
that might reasonably be expected to alter the conclusion reached by the court.”
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citations omitted).
A motion for reconsideration “should be granted only when the defendant
identifies an intervening change of controlling law, the availability of new evidence,
or the need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel
Mechil of Tartikov, Inc. v. YLE Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013)
(internal citation omitted). It is not a vehicle for “taking a second bite at the apple.”
Rafter v. Liddle, 288 F. App’x 768, 769 (2d Cir. 2008) (internal citation
omitted). The decision to “grant or deny a motion for reconsideration is within ‘the
sound discretion of the district court.” United States v. Stacharczyk, 511 F. Supp.
3d 438, 440 (W.D.N.Y. 2021) (quoting Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir.
2009)).
Il. PLAINTIFF’S OBJECTIONS
Plaintiff “objects to portions of [Judge Foschio’s] Order regarding the
[{I]ndividual [D]efendants,” namely, (1) “the denial with prejudice of a § 1983

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gender-based Equal Protection claim;” and (2) “the denial without prejudice of a
§1983 First Amendment claim.” Dkt. 82 at 5.6 These objections are overruled.
Insofar as Plaintiff seeks to replead her Section 1983 claims based on the
Equal Protection Clause, this Court has already granted leave. See Dkt. 58 at 48
(“Plaintiffs claims against the Individual Defendants under Section 1983 are
dismissed as insufficiently pleaded. Plaintiff is granted leave to amend her Section
1983 claims against the Individual Defendants (to the extent they are not barred by
Eleventh Amendment immunity) in order to show any requisite personal
involvement’). To the extent the Individual Defendants believe the Proposed
Second Amended Complaint (Dkt. 65-2) fails to state a cognizable claim, they may
raise the argument on a Rule 12(b)(6) motion to dismiss the Second Amended
Complaint, after it is filed.
Further, Judge Foschio properly determined that the Proposed Second
Amended Complaint fails to state Section 1983 claim based on denial of Plaintiffs
First Amendment rights. In particular, “Plaintiff asserts her First Amendment
retaliation claim based on speech that was intended to redress her own personal
grievances, rather than for a ‘broader public purpose.” See Dkt. 74 at 33-34 (citing
Quinones v. City of Binghamton, 997 F.3d 461 (2d Cir. 2021)). Plaintiffs (Dkt. 65)

6 In the Amended Complaint that this Court addressed, Plaintiffs Section 1983
claims against the Individual Defendants were based only on Equal Protection. See
Dkt. 49 at 19. She raises the First Amendment as a basis for these claims for the
first time in her (Dkt. 65) motion to amend.
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motion 1s, therefore, denied with respect to this claim. If Plaintiff is able to allege
sufficient facts to overcome this deficiency, she may seek further leave to amend.
HI. ROSENBAUM’S OBJECTIONS
Rosenbaum objects to Judge Foschio’s decision to permit Plaintiff “to add a
proposed third cause of action alleging a conspiracy claim” under 42 U.S.C. §
1985(3). Dkt. 78 at 1. These objections are overruled.
The “elements of a claim under § 1985(8) are: (1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or class of persons of
equal protection of the laws; (3) an act in furtherance of the conspiracy; (4) whereby
a person is deprived of any right of a citizen of the United States.” Brown v. City of
Oneonta, New York, 221 F.3d 329, 341 (2d Cir. 2000) (internal citation and
alterations omitted). Rosenbaum argues that Plaintiff fails to state a claim because
Plaintiff “has not alleged a meeting of the minds to further an unlawful end” or a
“tacit understanding to carry out the prohibited conduct.” Dkt. 78 at 4 (internal
citation omitted). Indeed, to maintain “an action under Section 1985, a plaintiff
must provide some factual basis supporting a meeting of the minds, such that
defendants entered into an agreement, express or tacit, to achieve the unlawful
end.” Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) (internal citation omitted).
And at this juncture, Plaintiff has sufficiently alleged the requisite meeting of the
minds.
Plaintiff alleges that the Individual Defendants met with Rosenbaum, Dkt.
65-2 [4 66, 68, 114, and informed him of conversations they had had with Plaintiff.

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See id. 160, 162, 170. She further alleges that these defendants then took
various actions, including failing to recommend avenues for relief, id. 1974-81, 114-
124, discouraging Plaintiff from complaining, id. [{ 84-85, or deliberately delaying
in following up on or forwarding the complaints Plaintiff did file to the appropriate
place. Id. 124-129. Drawing all reasonable inferences in Plaintiffs favor, these
allegations suggest a meeting of the minds among these defendants to violate
Plaintiffs rights.7
IV. THE STATE COURT DEFENDANTS’ OBJECTIONS
The State Court Defendants argue that the Proposed Second Amended
Complaint fails to state a claim against them under Title VII and, therefore, is
futile. See Dkt. 80 at 15.8 But even if that is true, dismissal of Plaintiffs Title VII
claims against the State Court Defendants is inappropriate in the present posture.
This Court ordered that “Plaintiffs Title VII claims against the State Court
Defendants may proceed to the extent that they post-date Rosenbaum’s resignation
in December 2019, but are otherwise dismissed without leave to amend.” See Dkt.

7 Put another way, these allegations can be fairly read as suggesting that the
Individual Defendants knew Rosenbaum was harassing Plaintiff, communicated
with Rosenbaum, and then took steps to allow it continue.
8 Specifically, they argue that Plaintiff does not “allege that after December 2019
the State Court Defendants failed to establish a reasonable avenue whereby
plaintiff could lodge a complaint of sexual harassment or that after becoming aware
of Plaintiffs specific complaint of a hostile work environment, the State Court
Defendants failed to address it.” Id. at 25.

-9.

58 at Id.° As such, the State Court Defendant’s objections are overruled without
prejudice to raising such arguments on a Rule 12(b)(6) motion to dismiss the Second
Amended Complaint, after it is filed.
V. THE INDIVIDUAL DEFENDANTS’ OBJECTIONS AND MOTION
FOR RECONSIDERATION
A. Objections to the Magistrate Judge’s Order
The Individual Defendants assert various objections regarding Plaintiffs
proposed claim under Section 1985(3). Dkt. 81-1 at 5-10. They also object to the
Magistrate Judge’s order to the extent it concluded that “Grimaldi could remain a
defendant in this case.” Jd. at 11-12. These objections are overruled.
First, the Individual Defendants contend that Judge Foschio “erred in finding
that Plaintiff stated a valid § 1985(8) conspiracy claim.” Dkt. 81-1 at 8. Like
Rosenbaum, they argue that “Plaintiff does not plead facts demonstrating the
existence of an agreement between Defendant Rosenbaum and the Individual
Defendants.” 9. The Court rejects this argument for the reasons discussed
in Section III above. The Individual Defendants further argue that the proposed
claim under Section 1985(3) fails because “a federal civil rights conspiracy claim
cannot be brought against a defendant not subject to a valid § 1983 claim.” See id.
at 10-11. Because this argument rises or falls on the existence of a valid Section
1983 claim, and because Plaintiff has leave to amend her Section 1983 First

9 Judge Foschio ordered that Plaintiffs Motion to Amend is “GRANTED with regard
to her Title VII claim asserted against [the] State Court Defendants.” Dkt. 74 at 29.
But that conclusion was unnecessary in light of this Court’s order.
. -10-

Amendment claim, see Dkt. 74 at 48, this objection is overruled without prejudice to
raising the argument on a Rule 12(b)(6) motion to dismiss the Second Amended
Complaint, once it is filed.
The Individual Defendants also contend that it was “error” for the Magistrate
Judge “not to dismiss Grimaldi from the case.” Id. at 11. Specifically, they argue
that Grimaldi cannot be liable under the NYHRL as an aider and abettor, given
that she is not alleged to have had any contact with Plaintiff prior to Rosenbaum’s
resignation—i.e., when Rosenbaum was allegedly committing a “primary violation”
under the NYHRL. Jd. But regardless of whether Plaintiffs NYHRL claims
against Grimaldi are viable, it would be premature to terminate Grimaldi from the
case at this juncture because, as noted above, Plaintiff has leave to amend her
Section 1983 First Amendment claims—which includes a claim against Grimaldi.
See Dkt. 74 at 48.
Further, this Court ordered that Plaintiffs claims under the NYHRL against
the Individual Defendants in their individual capacities may proceed. See Dkt. 58
at 48 (“All of Plaintiffs official-capacity claims against the Individual Defendants
for money damages are dismissed without leave to amend. Plaintiffs NYHRL
claims otherwise survive”). In their motion to dismiss the (Dkt. 49) Amended
Complaint, the Individual Defendants did not raise—and this Court, therefore, did
not consider—whether Plaintiffs NYHRL aiding and abetting claims may only
proceed to the extent they predate Rosenbaum’s resignation. See Dkt. 51-1; Dkt. 58
at 36-41. The Court, therefore, declines to consider the argument in this posture,

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but the Individual Defendants may raise it on a Rule 12(b)(6) motion to dismiss the
Second Amended Complaint, once it is filed.
B. Motion for Reconsideration
The Individual Defendants move for reconsideration of this Court’s order to
the extent that it “denied Allen’s motion to dismiss Plaintiffs claims against her as
time barred” as well as “to the extent it constrained the Magistrate Judge from
dismissing Grimaldi as a defendant.” Dkt. 81-1.1° The motion is denied, as these
defendants fail to identify “an intervening change of controlling law, the availability
of new evidence, or the need to correct a clear error or prevent manifest injustice.”
See Kolel, 729 F.3d at 104.
CONCLUSION
For the reasons discussed above, the Court OVERRULES all objections (Dkt.
78, 80, 81, 82), and further DENIES the Individual Defendants’ motion for
reconsideration (Dkt. 81). The case is referred back to Judge Foschio consistent
with the November 15, 2022 referral order. See Dkt. 59.
SO ORDERED.
Dated: August 11, 2023
Buffalo, New York io x

J OH. JL. SINATRA, JR. : □□
UNITED STATES DISTRICT JUDGE

10 Because the Court concludes that Grimaldi should not be dismissed as a
defendant at this juncture, it need not address whether the November 15, 2022
order precludes dismissal of Grimaldi as a defendant.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10366453. Public record. Not legal advice.